Abstract

The Supreme Court is not always supreme.

For much of this nation's history, this statement was true as a matter of law. Today, it is true in practice.

By supremacy, I mean what most people mean when they talk about the Supreme Court: the authority to determine, for everyone else, and in particular for every other court, what the Constitution of the United States means and requires. The Court says that it is supreme in this sense, nearly everybody else agrees with the Court about this, and many people complain about it. Yet it is not true.

Instead, the authority to determine what the Constitution means has always been shared. The focus of this Article is on how the Supreme Court shares the authority with the state courts. State courts, the Article shows, have always exercised a good deal of authority to determine, independently and definitively, the meaning of the Constitution. Until the early twentieth century, this authority was formalized in the statutory law that governed the Court's appellate jurisdiction. Today, though that law has changed, in practice the state courts continue to hold and to exercise substantial authority on issues of federal constitutional law. To be sure, the Supreme Court can, and sometimes does, reverse a ruling of a state court on an issue of federal constitutional law and the state court is required to follow the Court's decision. Indeed, on some issues, the Court aggressively keeps the state courts (and the lower federal courts) in check. This Article does not challenge the supremacy of the Court in this sense. Rather, the claim made here is that there are areas of the law where state courts, as a practical matter, have the ability, whether they have noticed it or not, to determine what the Constitution means with little or no oversight by the Supreme Court. In this sense, the Court is not supreme because authority is shared.

Several factors, explored closely in this Article, account for the modern sharing of authority between the Supreme Court and the state courts. In part, it results from some limitations on the Court's power and ability to review cases from the state courts. In part, the Court itself has simply given up the interpretive function to state judges. At times, state courts are authoritative because authority is hidden. As a result, while authority is shared, the divisions are not always easy to identify. Historically, the law drew clear lines between the authority of the state courts and the authority of the Supreme Court. Today, while the lines are there, they can appear faint, overlapping, and circuitous. It is no wonder we have had trouble noticing them.

Once we see that authority to interpret the federal Constitution is shared, the world of constitutional law and politics looks wholly different. Hard-fought battles over who serves on the Supreme Court seem excessive. Marching to the Court in support of this right or against that claim is less consequential. The modern fascination with the Court's seventy-odd decisions each year - instantly reported, dissected, critiqued, turned into symposia - appears an almost unhealthy obsession. Divining the future by microscopic inspection of the Justices' every written and spoken word becomes improbable. None of this is to deny that the decisions of the Supreme Court are important. Most are important; some are momentous. However, when authority is shared, we should worry less about the Supreme Court, and more about what is happening to federal constitutional law as it is developed and implemented in the state courts and in other venues.

In addition to exploring the ways in which the Supreme Court is not supreme, and the consequences that result, this Article offers a proposal. Historically, the authority of state courts was formalized. It makes sense, the Article argues, to formalize the authority state courts exercise today in practice. A sensible first step would be a formal rule that state courts, called upon to rule on federal constitutional claims against state government, should be permitted to deviate from the rulings of the Supreme Court and to do so without fear of correction by that Court. The Article qualifies and limits this proposition in various ways. For example, state courts would be permitted to expand upon, but not to narrow, federal constitutional rights as construed by the Supreme Court, and state courts would have leeway in certain kinds of cases, but not others. Though there would still be some downsides that would need to be confronted, the basic idea is that the state courts would once again, as a formal matter, have some independent authority to interpret the federal Constitution.

Mazzone, Jason, When the Supreme Court is Not Supreme (January 6, 2011). Northwestern University Law Review, Vol. 104, p. 979, 2010; Brooklyn Law School Legal Studies Research Paper No. 131. Available at SSRN: https://ssrn.com/abstract=1348593

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